ACLU: New OCDA Social Media Policy Still Unconstitutional

In a scathing letter last month, the American Civil Liberties Union of Southern California took the Orange County District Attorney’s office to task for scrubbing critical comments from its social media platforms. The civil liberties group argued that the offense, including blocking certain users, amounted to an unconstitutional suppression of free speech. A few days before the ACLU’s set deadline for a response, the agency acknowledged the civil liberties group made some “valid points.”

Accordingly, the OCDA introduced a new social media policy meant to alleviate concerns and all seemed copacetic. It’s now linked on district attorney Tony Rackauckas’ Facebook, Twitter and Instagram pages. But the ACLU sent the DA a new letter yesterday stating that his agency’s guidelines were too vague and prohibitive to be corrective. 

“While your new social media policy is an improvement over your prior blanket censorship of critical comments and commenters, the new policy too raises significant constitutional questions that we hope your Office will address,” Brendan Hamme, an ACLU staff attorney, wrote. “Simply put, the replacement policy is unconstitutionally restrictive and does little to establish clear standards for speech on the OCDA’s social media platforms.”

An OCDA spokeswoman responded to the first letter by suggesting the ACLU routinely attacked the agency because of its “aggressive pursuit of sexual offenders and gang members.” The civil liberties group wholly dismissed that notion in its follow up critique. The office offers no comment this time around, save for stating it is aware of and currently reviewing the second letter. 

The new terms of use guidelines the OCDA introduced earlier this month described its social media platforms as “moderated online discussion” sites and a “limited public forum.” Those descriptions, the ACLU argues, can’t be used to wipe out constitutionally protected speech. But T-Rack’s social media managers claim for themselves the power to delete any comments that are deemed “offensive to a reasonable person,” or that “hinders or distracts from useful discussions.” 

They also have the ability to scrub profane, “false and misleading,” and repetitive comments. “These vague, poorly defined metrics also unconstitutionally chill protected speech,” Hamme wrote. “Because users have no way of knowing in advance what speech ‘hinders or distracts from useful discussion,’ is offensive, etc. they will naturally refrain from fully engaging in otherwise protected speech to avoid censorship of their comments, effectively neutering what might otherwise be vigorous debate.” 

And with a reelection campaign in full swing, online discussions of the OCDA under Rackauckas’ tenure on its platforms are as important as ever, especially since the incumbent no-showed at the offline PEOPLE’s Coalition-hosted candidates forum this week. If T-Rack missed out on addressing questions like whether he’s merely seeking to become a six-term septuagenarian in order to hand over the reins to an unelected successor like Susan Kang Shroeder, the public’s right to ask as much–and link to the Weekly in doing so–on OCDA social media sites should be protected.

In the bullet point guidelines, the agency claims the authority to delete comments promoting or opposing candidates and the likes unless “such promotion or opposition is inherently related to discussion of an item posted by the OCDA. The ACLU is seeking clarification on what that actually means. 

“With the June election for Orange County District Attorney rapidly approaching, community members may wish to highlight the stances of candidates that differ from those you may express in a post,” Hamme wrote. “Their right to do so is of critical importance and among the highest level of speech protected by the First Amendment.” 

This time around, the ACLU didn’t set a deadline for OCDA to respond. But let’s get those guidelines clarified and in order quickly so as to commence T-Rack meme wars!